Deborah Eyles v Bottlers Limited [2026] NZERA 300

This Employment Relations Authority (ERA) determination is a useful warning about employers trying to characterise a termination as redundancy after the fact. Deborah Eyles accidentally sent a negative text message about a visiting parent to the visiting parent instead of to a colleague. Bottlers Limited then stopped rostering her, ran an unclear process about the incident, and sent her a termination letter that gave no reason for ending her employment. At the ERA, Bottlers said the termination was really because of reduced work and a review of its operations. The ERA found the dismissal unjustified, found two unjustified disadvantages, and ordered compensation and wage reimbursement. The full determination is embedded at the end of this page.

Background

Bottlers Limited was an authorised provider for the Ministry of Justice. Its work included providing supervised contact sessions between children and family members. Mrs Eyles worked as a Supervised Contact Visit Supervisor for over a year before her employment ended in November 2024.

The individual employment agreement was signed on 9 October 2023, with a start date of 10 October 2023. It described the employment as permanent part-time and referred to the role of Contact Visit Supervisor and Student Support Mentor/Housekeeping Assistant. The hours clause was poor. It stated only "TOTAL__TBD__HOURS per week up to 10 hours". The ERA understood "TBD" to mean "to be determined".

The agreement also included a redundancy clause. It said that, if in the normal course of business and following a reasonable restructuring process Mrs Eyles was made redundant, she would be given two weeks' notice. That wording became important because Bottlers later tried to rely on redundancy. The ERA found there had been no reasonable restructuring process with Mrs Eyles at all.

The text message incident

On 2 November 2024, Mrs Eyles supervised a visit involving a child and a visiting parent. During the visit, she intended to send a text message to her supervisor about the situation. In that message she used a negative word to describe the visiting parent. The problem was that she accidentally sent the message to the visiting parent's number instead of to her supervisor.

The visiting parent complained. Mrs Eyles said she contacted her supervisor by phone on the way home and then called into the supervisor's home to discuss what had happened. She was told that Bottlers would be in touch and that she had been taken off the work she had been rostered to do the next day. According to Mrs Eyles, there was no proper explanation for why she had been removed from the roster, except that there was a process she needed to go through.

On 3 November 2024, Mrs Budge spoke with Mrs Eyles by telephone. Mrs Eyles said she was assured that it was okay but that there was a process to go through. She also said she was fine to carry on working. The next day, Mrs Budge texted that Bottlers needed to work through issues arising from the visit and would be in touch before the end of the week. In the meantime, Bottlers would not schedule any supervised visits to Mrs Eyles.

The unclear investigation and non-rostering

Bottlers asked Mrs Eyles to prepare an incident report. A meeting was arranged for 8 November 2024. On the morning of that meeting, Mrs Budge texted that the meeting would work through all aspects of the incident and that there would be another meeting on 15 November 2024. When Mrs Eyles attended the office, she saw that she had not been rostered for the next week either.

At the 8 November meeting, Mrs Eyles had a support person with her. The parties went through paperwork about the incident. Mrs Eyles asked why she was "stood down" for another week. Mrs Budge said it would give Mrs Eyles extra time to reflect on the situation. Mr Budge said it was so Bottlers could finalise the paperwork.

The ERA later found that the label was not the main issue. Bottlers pointed out that Mrs Eyles was the one who called it a stand down. But the substance was that Bottlers chose not to roster her as it normally would have, did not consult her before making that decision, and gave no adequate justification for removing work from her.

The termination letter

On 14 November 2024, Bottlers emailed Mrs Eyles a termination letter. The letter said that John and Melanie Budge had discussed her employment and had decided, as per her employment contract, to give her two weeks' notice effective from 15 November 2024. It also said Bottlers would pay her five hours per week for the two weeks of notice, she would not be required to supervise any visits, and she did not need to attend the meeting planned for 15 November 2024.

The letter gave no explanation of the reason for termination. That omission mattered. Mrs Eyles understandably thought the termination was connected to the incident and the complaint. Bottlers later said the termination had nothing to do with that incident and was instead because of a review of operations and a downturn in referrals.

Bottlers said it was redundancy

Bottlers' position was that, in July 2024, changes for providers of Supervised Contact Services had been tabled by the Ministry of Justice and that this prompted a review of workload, client numbers and staffing levels. Bottlers said there had been a reduction in Court-ordered supervised visits and that it decided there was not enough work to sustain Mrs Eyles' permanent part-time employment.

At the investigation meeting, Bottlers said the selection criterion used was "last on, first off", and that Mrs Eyles was the last person employed. However, none of that had been put to Mrs Eyles before the decision was made. She had not been given the business reasons, financial or workload information, selection criteria, or any opportunity to comment on the proposed termination.

The legal test

The ERA applied the statutory justification test in s 103A of the Employment Relations Act 2000. That test asks whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time.

In a redundancy case, the Authority will usually examine the business reasons, whether the redundancy was genuine, and whether notice and consultation requirements were met. The employer must also comply with good faith obligations. Where a proposed decision is likely to adversely affect the continuation of employment, the employer must provide access to relevant information and give the employee an opportunity to comment before the decision is made.

The unjustified dismissal finding

The ERA found that Mrs Eyles' dismissal was unjustified on both procedural and substantive grounds. Bottlers had followed no restructuring process with her. The employment agreement referred to a reasonable restructuring process, but no such process happened.

Bottlers may have had concerns about a downturn in work or Ministry of Justice changes, but those concerns were not put to Mrs Eyles. She was not consulted about the claimed business reasons. She was not consulted about the selection criterion of "last on, first off". She was given no notice that her employment was at risk. The termination letter did not even state that redundancy was the reason.

The ERA also could not conclude, on the evidence presented, that redundancy was the genuine and predominant reason for the termination. If the real reason, or a predominant reason, was the text message incident, Bottlers had still not justified dismissal. It had not sufficiently raised concerns, given Mrs Eyles a reasonable opportunity to respond, or genuinely considered her explanation before dismissing her.

In short, whether the case was viewed as redundancy, discipline, or mixed motives, Bottlers did not act as a fair and reasonable employer could have acted. Mrs Eyles established a personal grievance for unjustified dismissal.

The unjustified disadvantage findings

Mrs Eyles also succeeded with personal grievances for unjustified disadvantage. The first was the failure to roster her during the two weeks after the incident. Bottlers removed work from her without prior consultation and without a justified basis. It then paid her less than her average hours.

The second disadvantage was connected with the investigation itself. The process lacked clarity. Mrs Eyles was not clearly told what process Bottlers was following or what the potential outcomes were. A further meeting was set for 15 November 2024, but her employment was terminated the day before that meeting without any explanation of the investigation outcome.

The ERA found that Bottlers' actions affected Mrs Eyles' employment to her disadvantage. She was prevented from working, received five hours' pay per week despite usually working more, and was left without proper consultation or clarity. Bottlers did not justify those actions.

The hours problem and wage reimbursement

A practical issue was how much Mrs Eyles should have been paid during the two weeks she was not rostered and the two-week notice period. Bottlers had paid five hours per week. Mrs Eyles said this did not reflect her normal work.

The employment agreement did not specify agreed hours of work under s 67C and did not properly explain the arrangements for when Mrs Eyles was to work. Bottlers also did not provide wages and time records that displaced Mrs Eyles' evidence. The ERA accepted her evidence that she had worked an average of 17 hours per week in the three weeks before the incident.

The ERA therefore awarded the shortfall of 12 hours per week for four weeks. At the hourly rate of $32.50, that produced $1,560 gross. The ERA also ordered 8% annual holiday pay on that gross amount.

Compensation

Mrs Eyles said she was stressed by losing her job with no prior warning and without understanding what had happened during the previous two weeks. She had been reassured that everything was okay, then received a termination letter with no reasons. She described being totally devastated, struggling to sleep, experiencing self-doubt, and feeling overwhelmed in the weeks after dismissal.

The ERA accepted she suffered significant harm under the s 123(1)(c)(i) categories of humiliation, loss of dignity and injury to feelings. It awarded $16,000 for the unjustified dismissal and $4,000 for the unjustified disadvantage grievances, for total compensation of $20,000.

No contribution reduction

The ERA considered whether remedies should be reduced for contribution under s 124. No deduction was made. The unjustifiability of Bottlers' actions arose from its own failure to follow minimum statutory requirements. Those obligations belonged to Bottlers, not to Mrs Eyles.

Why this case matters

This determination is useful because it shows the danger in an employer giving no reason for dismissal and then trying to justify it later. If the reason is redundancy, the employer needs to act like it is redundancy before the dismissal: provide information, consult, identify the proposal, explain the selection method, and give the employee a real chance to comment.

The case is also important for employers who remove an employee from the roster while they investigate an incident. Calling it something other than suspension or stand down will not necessarily solve the problem. If the practical effect is that work is removed, pay is reduced, and the employee is left hanging without consultation or clear process, an unjustified disadvantage grievance may follow.

Finally, the decision is a reminder that vague hours clauses can create problems. Where an agreement does not clearly state agreed hours or working arrangements, and the employer cannot produce proper wage and time records, the ERA may accept the employee's evidence about average hours worked.

Practical takeaways

• Do not hide the ball: a termination letter should clearly state the reason for dismissal.
• Redundancy requires a process: business reasons, relevant information, alternatives and selection criteria should be put to the employee before the decision is made.
• Good faith matters: where employment may end, the employee must be given relevant information and an opportunity to comment.
• Mixed motives are dangerous: if an incident and a claimed redundancy are both in the background, the employer needs to be clear and fair about what it is actually doing.
• Removing work can be a disadvantage: not rostering an employee during an investigation can still affect employment conditions and require justification.
• Investigation process should be clear: the employee should know the concerns, the possible outcomes, and what process is being followed.
• Hours clauses need care: vague wording such as "TBD" and "up to" can cause disputes about what the employee should be paid.
• Keep records: without wage and time records, an employer may struggle to challenge an employee's evidence about average hours.
• Contribution is not automatic: an employee's mistake does not necessarily reduce remedies if the grievance was caused by the employer's failure to follow the law.

Read the full ERA determination (embedded)

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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.